dissenting:
In this case as well as the recent case of In re Darius G., 406 Ill. App. 3d 727 (2010), this court has applied a per se rule holding that even a theoretical conflict of interest, no matter how insignificant, serves as a basis for undoing a lengthy juvenile court proceeding concerning the care and custody of a minor. I disagree with these holdings; accordingly, I respectfully dissent.
While there are cases that support the majority’s position, as well as the position of the court in In re Darius G. (see In re S.G., 347 Ill. App. 3d 476, 479 (2004)), there is also conflicting authority. In In re D.B., 246 Ill. App. 3d 484, 492 (1993), the Fourth District of this appellate court limited the per se conflict rule, declining to apply it to a case where an attorney represented a minor and a respondent mother, because the representations were not simultaneous and the mother was aware that the attorney had previously represented the minor. Under such circumstances, the Fourth District concluded, a showing of prejudice was necessary. In re D.B., 246 Ill. App. 3d at 492.
In re C.C., 368 Ill. App. 3d 744 (2006), also provides sound guidance. In that case, the court considered whether to apply in a termination proceeding the standard set forth in United States v. Cronic, 466 U.S. 648 (1984), for assessing the performance of counsel. Under Cronic, a criminal case, counsel’s representation is inadequate where counsel completely fails to subject the State’s case to meaningful adversarial testing. Cronic, 466 U.S. at 659. Prejudice is presumed. In re C.C., 368 Ill. App. 3d at 748. The Court declined to apply this standard in a termination proceeding, explaining:
“It seems counterintuitive to apply a test that depends upon a determination of whether the proceeding was sufficiently adversarial in nature when the legislature has specified that proceedings under the Act are not meant to be adversarial in nature. See 705 ILCS 405/1—5 (West 2004). A respondent parent’s right to counsel in termination proceedings derives from the Act, not the constitution. In re A.H., 359 Ill. App. 3d 173 (2005); 705 ILCS 405/1—5 (West 2004). Hence, the sixth-amendment analysis and rationale delineated by Cronic and its progeny, stating that ‘[t]he right to effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing,’ does not apply here. Cronic, 466 U.S. at 656 ***.” In re C.C., 368 Ill. App. 3d at 748.
The court then applied the more familiar standard taken from Strickland v. Washington, 466 U.S. 668 (1984), and found that the respondent had not shown prejudice. In re C.C., 368 Ill. App. 3d at 747-48. If prejudice cannot be presumed from an actual breakdown of the adversarial system, it would be incongruous to presume prejudice where an attorney simply has some theoretical conflict of interest.
In re Kenneth F, 332 Ill. App. 3d 674 (2002), is also instructive. There, this court applied a harmless-error analysis to the failure of the trial court to properly admonish a respondent in a termination case. We explained:
“In proceedings of the present kind, where a primary purpose is to protect the best interests of the children, a harmless-error analysis is particularly appropriate. See In re Smith, 77 Ill. App. 3d [1048,] 1052 [(1979)]. An error that prejudices no one should not prevent children, who are the objects of these proceedings, from attaining some level of stability in their lives.” In re Kenneth F., 332 Ill. App. 3d at 679-80.
Hence, in In re Kenneth F, we recognized the importance of finality in a termination proceeding over the procedural rights of a respondent where the violation of those rights did not prejudice the respondent.
Absent a showing of prejudice, the same result should obtain here (and I would remand this case to allow respondent to attempt to make such a showing). Instead, the majority undoes nearly five years of litigation because an attorney (Reeves-Rich) made a single appearance on behalf of the minor on September 11, 2006, and an appearance on respondent’s behalf on April 20, 2010.2 Thus, as far as one can tell from the record, the conflict upon which the majority relies is an exceedingly mild one. To allow such a de minimis violation of the per se conflict rule to undo the whole proceeding needlessly prolongs an already lengthy proceeding and denies stability to the minor whom this proceeding is designed to protect. It is also a tremendous waste of the resources of the parties and the court system. Further, as the State points out, the “practical effect of the new per se limitation respondent seeks to impose *** would hamstring well-intentioned public defenders whose only desire was to represent unrepresented indigent parties.”
Undoubtedly, the effective assistance of counsel is an important right; however, finality—always an important consideration (see, e.g., In re Liquidation of Legion Indemnity Corp., 373 Ill. App. 3d 969, 974 (2007))—takes on added significance in termination cases. These cases are among the small class of cases subject to mandatory acceleration on appeal. See Ill. S. Ct. R. 311 (eff. Feb. 26, 2010); see also In re Marriage of Carrillo, 372 Ill. App. 3d 803, 811 (2007). A per se rule that allows—indeed, requires—reversal for an error that is not prejudicial does not strike a proper balance between a party’s right to counsel and a child’s need for finality.
Accordingly, I would reject the per se standard in cases like this one. The per se standard was imported from criminal cases, and I, too, would seek guidance from the criminal law and its well-developed framework for dealing with conflicts of interest. In People v. Flores, 128 Ill. 2d 66, 84 (1989), our supreme court held, “Where a per se conflict of interest is not established, it is the defendant’s burden to show an actual conflict of interest and to demonstrate prejudice.” Under such circumstances, “If a per se conflict does not exist, a defendant may still establish a violation of his right to effective assistance of counsel by showing an actual conflict of interest that adversely affected his counsel’s performance.” People v. Hernandez, 231 Ill. 2d 134, 144 (2008).3 It is not necessary to make the additional showing that the deficiency contributed to the result of the proceeding. People v. Taylor, 237 Ill. 2d 356, 375-76 (2010). I would apply that standard here and require an appellant to identify some actual, tangible, specific deficiency in counsel’s performance before reversing.
The majority’s response to this dissent proves too much.4 It posits that “[w]hen a per se conflict is recognized, it should immediately be brought to the trial court’s attention to be remedied, either by having the party waive the conflict or by discharging the attorney.” 408 Ill. App. 3d at 868. By the time the conflict is recognized, however, it is too late to remedy it (unless the party waives the conflict, a prospect upon which one cannot depend). In such a case, even if the trial court were to immediately discharge the conflicted attorney, the per se rule would allow a party to successfully raise this issue on appeal, for it holds that, once a conflict arises, we are not allowed to inquire into its severity. The trial court may as well start over. On appeal, we will not be able to consider things like whether the attorney was involved in the case for only a short time and promptly acted to be removed from the case once the conflict became apparent. The majority’s suggestion to the contrary notwithstanding, discharging a conflicted attorney is no remedy unless we can consider the nature and extent of the attorney’s representation.
The majority sets up a straw man, asking, “[w]hich system makes *** waste [of the resources of the parties and the court] less likely to occur: one that prevents the potential of conflict by ‘informing] the trial court not to accept an appearance from an attorney who already, at some point during the proceedings, appeared on behalf of another party’ (Darius G., 406 Ill. App. 3d at 738), or one that waits until after the improper representation occurs, then requires, at best, the opportunity for a hearing to determine if prejudice has occurred, and, if it has, requires the appointment of new counsel and a new termination proceeding?” (Emphasis in original.) 408 Ill. App. 3d at 866. The question is not which is the better practice. I wholeheartedly agree that trial courts should strive to ensure conflict-free representation for all parties, and I trust that courts and counsel will conscientiously seek to follow the ethical rules regarding conflicts (see, e.g., Ill. S. Ct. Rs. of Prof. Conduct, R. 1.7(a)(1) (eff. Jan. 1, 2010)) regardless of whether the per se rule is in place. Rather, the issue is what should happen when a mistake is made and a conflict arises. The majority holds that in all such cases, regardless of whether anyone suffered any prejudice whatsoever or whether the conflict had any effect upon the proceedings at all, we must undo the results of a termination proceeding. I, conversely, would closely examine the facts and circumstances of each such case before ordering that the proceedings must begin anew.
The majority further chides that this dissent does not “address how such a showing should be made.” 408 Ill. App. 3d at 866. It then goes on to pose a plethora of questions regarding subjects as esoteric as whether a trial judge will have to “recuse himself or herself’ to avoid an appearance of impropriety after the disclosure of privileged information and what contempt power a trial court should use to allow the parties to present evidence. 408 Ill. App. 3d at 866-67. It is generally improper for a court to give legal advice regarding future events. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 266 (2010). Addressing the many varied questions asked by the majority might run afoul of this principle. That said, as explained above, the requirement that a litigant show an actual conflict of interest that adversely affected counsel’s performance is not something foreign to the law. See, e.g., Taylor, 237 Ill. 2d at 375-76. These principles do not reflect a particularly recent development, having been articulated over 30 years ago by the Supreme Court in Cuyler, 446 U.S. at 350. As this body of law has been in existence for a considerable period, trial courts likely have adequate guidance regarding how to handle such matters. Furthermore, it is noteworthy that, when the Supreme Court announced Cuyler, it nowhere provided the detailed blueprint the majority now demands. See also People v. Krankel, 102 Ill. 2d 181, 189 (1984) (announcing a new rule requiring what would come to be known as a Krankel hearing whereby a case is remanded for a post-trial hearing on a pro se ineffective-assistance-of-counsel claim, without providing detailed directions on how to conduct such a hearing). I further observe that the majority raises these questions in the context of considering whether the per se rule causes a relative waste of resources of the court and the parties. I would point out that mitigating such a waste is but one benefit of requiring a showing of prejudice, and a collateral one at that. Of primary concern is permanency and stability in the lives of the children involved in termination proceedings. See In re Kenneth F., 332 Ill. App. 3d at 679-80.
Ironically, the majority, invoking Occam’s razor, charges that the dissent fails “to set forth the pluralities that would arise in attempting to determine if a prejudicial violation occurred.” 408 Ill. App. 3d at 868. It then extols the virtue of the per se rule as a “simple explanation of how to resolve this recurring problem.” 408 Ill. App. 3d at 868. Presumably, the “recurring problem” to which the majority refers is counsel operating under a conflict of interest. Here, it is the majority that ignores perhaps the most relevant “plurality” in this case. The per se rule certainly provides staunch protection for a party’s right to counsel; however, that is not the only interest at stake here. As noted above, stability in the life of a child is also an important consideration. By mandating reversal for even technical and de minimis violations of the right to counsel, the per se rule hardly recognizes the competing interest in stability and finality at all.
In sum, I would reject the per se standard in the present context just as the In re C.C. court declined to presume prejudice in termination cases. See In re C.C., 368 Ill. App. 3d at 746-47. Instead, I would apply the long-standing principles used to assess actual conflicts of interest in criminal cases. See Cuyler, 446 U.S. at 350; Hernandez, 231 Ill. 2d at 144.
The majority seems to accept the State’s argument that Jura’s representation was so insignificant that it created no conflict. Reeves-Rich also represented the respondent father on March 29, 2010. It is not, however, apparent to me how respondent and the father are necessarily “parties with adverse objectives.” See In re S.G., 347 Ill. App. 3d at 481.
Some courts characterize this showing as one to be made in lieu of demonstrating prejudice (see Cuyler v. Sullivan, 446 U.S. 335, 349 (1980)), while others treat it as an alternate way to show prejudice (see Hernandez, 231 Ill. 2d at 143-44). Whatever the exact nature of the showing, identifying a specific deficiency in counsel’s performance is analogous to showing prejudice and strikes a more appropriate balance between a respondent’s right to counsel and a minor’s interest in finality.
The majority’s assertion that this dissent is not supported by authority is simply puzzling, as this dissent is expressly based on three Illinois cases: In re D. B., 246 Ill. App. 3d 484, In re C.C., 368 Ill. App. 3d 744, and In re Kenneth F., 332 Ill. App. 3d 674.